IX. In-Court Demonstrations/Exhibits

A. FIELD SOBRIETY TESTS

Baker v. State, 879 S.W.2d 218 (Tex.App.-Houston [14^th Dist.] 1994, pet. ref’d).

Court properly refused to allow defendant to demonstrate his ability to perform FSTs in court as no predicate was laid as to reliability or probative value of said demonstration.

B. SMELL TEST

Lewis v. State, 933 S.W.2d 172 (Tex.App.-Corpus Christi 1996, pet. ref’d).

Defendant claimed beer he was consuming was non-alcoholic beer to explain odor officers detected on his breath at time of stop. Defense counsel wanted to do experiment where officers in front of the jury would be asked to judge which of nine cups had alcoholic and which had non­-alcoholic beer. Test was properly disallowed as conditions of test substantially differed from those existing at time of the stop 

C. SMELL & TASTE TEST

Kaldis v. State, 926 S.W.2d 771 (Tex.App.-Houston [1^st Dist.] 1996, pet. ref’d).

Defense request that jurors be allowed to smell and taste non-alcoholic mixtures so jurors would see that it is possible for non-alcoholic mixtures to smell and taste like alcoholic beverages was properly denied.

D. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLE

Platero v. State, No. A14-94-00403-CR, 1995 WL 144565 (Tex.App.-Houston [14^th Dist.] 1995

Injury trial, chart on which officer listed symptoms of intoxication observed in that case was found to be a proper demonstrative aid, but should not have been admitted into evidence. Error in doing so found to be harmless.

E. CHART OF SYMPTOMS OF INTOXICATION- DEMONSTRATIVE EVIDENCE

Baker v. State, 177 S.W.3d 113 (Tex.App.-Houston [1^st Dist.] 2005, no pet.).

The Court held that a fill-in-the-blank chart that covered signs of intoxication the officer observed was admissible as demonstrative evidence. The prosecutor filled in the blanks as the officer testified. The fact that the chart might contain information similar to that in the police report does not render it inadmissible as a demonstrative aid.

F. DEMONSTRATION OF DEFENDANT’S SPEECH 

Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. October 1, 2003).

To rebut the evidence that defendant’s speech was slurred due to alcohol, his attorney sought to have his client provide a voice exemplar before the jury, but wanted to do so without being subjected to cross examination. The Court of Appeals found that the Trial Court properly prohibited this holding that other means of showing the same thing were available and that to allow the defendant to do so without being exposed to cross examination risks great potential prejudice to the State and risks misleading the jury. The Court of Criminal Appeals reversed finding that a voice exemplar is not testimonial whether it is offered by the State or the Defense. It is physical evidence.

G. ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED ASDEMONSTRATIVE EVIDENCE

Orrick v. State, 36 S.W.3d 622 (Tex.App.-Fort Worth 2000, no pet.). 

State was allowed to offer a full unopened bottle of vodka as demonstrative evidence in this DWI case where a bottle of vodka was found in defendant’s car at the time of the arrest. In holding it was error, albeit harmless, to allow the State to do so the Court found that when an object that is substituted for the original used in the commission of a crime is not an exact replica and differs in its distinguishing characteristics, the probative value of that object as demonstrative evidence will be very slight.

H. 911 TAPE ADMISSIBLE/NO CRAWFORD VIOLATION:

Ford v. State, No. 08-14-00093-CR, 2016 WL 921385 (Tex.App.-El Paso 2016, pet ref’d)

State offered a 9-1-1 call through the testimony of a 9-1-1 call center supervisor. The 9-1-1 tape contained a call made by the passenger in Defendant’s car who stated Defendant was intoxicated and driving dangerously and that she needed help. Court holds that statement as non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purposes of the interrogation is to enable police assistance to me in an ongoing emergency.

Smith v. State, No. 10-15-000181-CR, 2015 WL 9256927 (Tex.App.-Waco 2016) pdr ref’d

Statements made by Defendant’s wife to police in 9-1-1 call were properly admitted and heard on 9-1-1 tape and did not violate confrontation clause. Further statements to police on arrival about Defendant being drunk were not hearsay and were properly admitted as excited utterances and present sense impression.

Rodgers v. State, No. 09-09-00359-CR, 2010 WL 3043705 (Tex.App.-Beaumont 2010, no pet.).

Recording of call made to 9-1-1 by motorist with whom Defendant had a car accident was non­-testimonial evidence, and thus admission of the 9-1-1 recording did not violate Defendant’s right of confrontation in DWI trial. The primary purpose for the 9-1-1 call was to enable police to meet an ongoing emergency. Although the accident had already occurred when the motorist called 9-1-1, Defendant had driven away and motorist was notifying emergency services that an intoxicated person had just committed a hit-and-run and was driving on a public roadway.

Cook v. State, 199 S.W.3d 495 (Tex. App.-Houston [1st Dist.] 2006).

This case involved a 9-1-1 call to police reporting a drunk driver who threw a bottle at his car. The 9-1-1 call was admitted and the witness was not called. Defendant objected to violation of right to confront the witness and claimed contents of taped call were hearsay. The Court held that the statements made on the 9-1-1 tape:

1. did not violate the right to confrontation under Crawford because they were non-testimonial, and
2. were not inadmissible under the Rules of Evidence as hearsay because they were excited utterances.